Neil v. Flynn Lumber Co.
| Decision Date | 25 April 1916 |
| Parties | NEIL v. FLYNN LUMBER CO. |
| Court | West Virginia Supreme Court |
Rehearing Denied June 2, 1916.
Syllabus by the Court.
For the principles of law governing this case see Neil v. Flynn Lumber Company, 71 W.Va. 708, 77 S.E. 324.
There was a judgment for defendant in the circuit court upon demurrer to the evidence. The evidence calls for a reversal of the judgment.
Additional Syllabus by Editorial Staff.
Where an employé had his leg broken August 12, 1907, and was treated on same day, but injury resulted from treatment August 23, 1907, an action against the employer for injuries from the wrong treatment begun August 15, 1908, was not barred by the limitation of one year.
An award of $3,000 damages for wrong treatment by a physician employed by defendant of plaintiff's broken leg, by reason of which he was permanently disabled at the age of 21 years, and did not recover his strength or ability to work was not excessive.
Error to Circuit Court, Nicholas County.
Action by Orville Neil against the Flynn Lumber Company. Judgment for defendant, and plaintiff brings error. Reversed and rendered.
Fred O. Blue, of Phillippi, G. G. Duff and S. R King, both of Summerville, and W. G. Brown, of Richwood, for plaintiff in error.
Alderson & Breckinridge, of Richwood, and McClintic, Mathews & Campbell, of Charleston, for defendant in error.
The case was before this court on a former occasion, and the legal questions arising on the declaration decided. 71 W.Va. 708, 77 S.E. 324. We decided in that case that, where an incorporated company agrees with an employé, for a consideration therefor, to furnish a competent and skilled physician to attend and treat him in sickness or accident occurring while in its service, it is bound thereby to select and retain for that purpose a physician having the knowledge and skill ordinarily possessed by other members of his profession in the same community, and, if the company fail to perform the duty so imposed, and by reason thereof the employé is injured, the company is liable in damages to the servant to the extent that the physician himself would be were he sued for the injury. The case was remanded to the circuit court of Nicholas county, and a trial had. Both parties introduced testimony, and when it was all in the defendant demurred to the evidence, and the plaintiff joined in the demurrer. The question of the amount of damages was submitted to the jury. Thereupon the jury returned a conditional verdict for the plaintiff for $3,000. The court sustained the demurrer to the evidence and dismissed the suit, and entered judgment against the plaintiff in favor of the defendant for costs. The evidence is regularly certified by bill of exceptions; and writ of error was allowed to this court.
There are four things which the plaintiff must prove to entitle him to a judgment, namely:
First. That he was in the employ of the defendant at the time he was injured. The evidence is quite clear that he was employed by the defendant, and was at work for the defendant at the time of the accident.
Second. That by the contract of employment the defendant agreed, for a consideration, to furnish the plaintiff a competent physician to attend and to treat him for any sickness or accident occurring while in its service. The testimony shows that such was the contract, and that a certain sum was deducted from plaintiff's wages every month to pay for medical services. The evidence is somewhat confusing, by reason of the fact that the defendant did not have him enrolled by name. The account was carried in the name of the "Neil team," which included the horse and driver, and the plaintiff was the driver. The defendant recognized its duty to furnish a physician for the plaintiff by doing so.
Third. The plaintiff must prove, not only that he was injured while in the defendant's services, and that he needed the care and attention of a physician, but also that it was the duty of the company to furnish him a competent physician. Did the defendant furnish a competent physician to attend the plaintiff? Upon this subject the evidence is somewhat contradictory. The defendant was notified of the injury to the plaintiff, and sent Dr. Dunbar at plaintiff's request to attend him. Plaintiff's leg was broken. Dr. Dunbar reduced the fracture, and it is conceded that Dr. Dunbar was a competent and skilled physician. Dr. Dunbar says in his testimony that he was sent by the defendant to attend the plaintiff and to do what was necessary to be done. From this evidence the jury may well have interpreted this arrangement to have been that Dr. Dunbar...
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